3PLR – MOHAMMED TUKUR V. MARYAM UMAR YAR’ADUA & ORS.
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
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MOHAMMED TUKUR
V.
MARYAM UMAR YAR’ADUA & ORS.
IN THE COURT OF APPEAL OF NIGERIA
ON MONDAY, THE 21ST DAY OF NOVEMBER, 2011
CA/K/EP/NA/21/2011
3PLR/2011/61 (CA)
OTHER CITATIONS
BEFORE THEIR LORDSHIPS
AMINA ADAMU-AUGIE, JCA
ABDU ABOKI, JCA
THERESA NGOLIKA ORJI-ABADUA, JCA
BETWEEN
MOHAMMED TUKUR – Appellants
AND
- MARYAM UMAR YAR’ADUA
- PEOPLES DEMOCRATIC PARTY
- INDEPENDENT NATIONAL ELECTORAL COMMISSION,
- RESIDENT ELECTORAL COMMISSIONER, KATSINA STATE
- CONGRESS FOR PROGRESSIVE CHANGE Respondents
REPRESENTATION
- Abbas-Ibrahim Esq; – for the Appellant/Cross-Respondent
Napoleon O. Idenala Esq; – for the 1st and 2nd Respondents/Cross-Appellants
– For Appellant
AND
- A. Suleiman Esq; – for the 3rd and 4th Respondents
Suleiman Usman Esq; – for the 5th Respondent
- For Respondent
MAIN ISSUES
ELECTION PETITIONS – JURISDICTION OF AN ELECTION TRIBUNAL:-Rule that any ground in an election petition questioning the qualification or non-qualification of a candidate at an election on the fact that such candidate was not nominated and sponsored by his political party, does not fall within the jurisdiction of election tribunals to adjudicate upon – Proper application of – Legal effect
ELECTION MATTERS:- Qualifications of a candidate for elections into the House of Representative – Disqualifying grounds – Provisions of Sections 65 and 66 – Where there is inconsistency in criteria prescribed by the two different sections – Which prevails – How ascertained
ELECTION MATTERS:- Qualifications of a candidate for elections into the House of Representative – Sponsorship by a political party – Whether mandatory – Tribunal with jurisdiction to determine such pre-election matters – Whether election petitions
CONSTITUTIONAL LAW – RELATIVE HIERARCHY OF DIFFERENT CONSTITUTIONAL PROVISIONS- Section of the Constitution designated as subject to another section – provisions of section 65 designated as subject to subject 66 – Where there is inconsistency between the sections – Proper treatment of – Legal effect
CHILDREN AND WOMEN LAW: Women in Politics – Election Petition – Legal and political considerations to participation in electoral politics
PRACTICE AND PROCEDURE – ACTION – CLAIM AND ALTERNATIVE CLAIM: Alternative claim – Essence and nature of – Choices it offers the party claiming – Rule that it is only after the first or principal relief had been considered and it seemed impossible to be granted or refused that the Court would proceed to consider the claim in the alternative – Legal effect
PRACTICE AND PROCEDURE – APPEAL:- When a matter is said to have been appealed against – Rule that an appeal is deemed to be a continuation of the proceeding – Implications for a terminated appeal or a decision against which there is no subsisting appeal
PRACTICE AND PROCEDURE – JUDGMENT AND ORDER – JUDGMENT NOT APPEALED AGAINST:- Rule that it is only when a party has not appealed against a judgment given against him in a suit, that he is bound to have that judgment enforced against him and through the process entrenched by the law – Implications for the validity of an enforcement of judgment that has been appealed against
INTERPRETATION OF STATUTE – SECTION DESIGNATED AS SUBJECT TO ANOTHER SECTION – SECTION 65 AND SECTION 66 OF THE 1999 CONSTITUTION:- Whether the provisions of section 66 supercedes the provisions of section 65 of the 1999 Constitution
WORDS AND PHRASES – “APPEAL”: Meaning of the word “appeal”
MAIN JUDGMENT
THERESA NGOLIKA ORJI-ABADUA, J.C.A. (Delivering the leading judgment):
In compliance with the provisions of the Constitution of the Federal Republic of Nigeria, 1999 (as Amended), the 3rd Respondent conducted an election to the House of Representatives of the Federal Republic of Nigeria for the Katsina Central Federal Constituency on the 9th April, 2011. The record of this appeal indicates that both the 1st Appellant and 1st Respondent were amongst the candidates who contested the election, after which, the 1st Respondent, per Form EC 8E(i), was returned and declared as the winner of the election on that same 9th April, 2011 by the 3rd Respondent. The 1st and 2nd Respondents found the result distasteful and then proceeded to the National and State House of Assembly Election Tribunal For Katsina State, sitting at Katsina, to file an election petition praying for determination of the following:
“(i). That the 1st Respondent was not duly elected by majority of lawful votes cast at the election.
(ii). That the 1st Petitioner who scored the majority of lawful votes at the election be declared validly elected and returned the winner of the election.
OR IN THE ALTERNATIVE TO i and ii above:
(iii). That the 1st Respondent was not duly elected or returned.
(iv). That the election of the 1st Respondent was null and void and a fresh or bye-election ordered to be conducted by the 2nd Respondent for the Katsina Central Federal Constituency.
It was hinged on the ground that the Appellant was not a rightful or validly nominated candidate of the 5th Respondent at the election held on the 9th April, 2011. The 1st and 2nd Respondents heavily relied on this Court’s decision in Appeal No. CA/K/133/2011 between CPC vs. Senator Garba Lado & others, now reported in (2011) 14 NWLR Part 1266 page 40 to strengthen their argument.
The Petition proceeded to hearing and determination. The 1st Respondent called one witness while the Appellant testified for himself. The 3rd and 4th Respondents called one witness.
The 1st Respondent’s lone witness, Ahmed Danbata, a Legal Practitioner and the Legal Adviser to the 2nd Respondent testified on 22/7/11 and adopted his assertions in the two Witness Statements on Oath he swore to on 29/4/11 and 21/5/11 respectively as his evidence in the proceedings. They were received in evidence as Exhibits 1 and 1A respectively. Exhibit J in Petition No. KT/EPT/HR/1/11 was admitted from the Bar on the same 22/7/11. It is instructive to note that the evidence led by the Petitioners, i.e. 1st and 2nd Respondents centred only on the issue, whether the Appellant was actually nominated and sponsored by the 5th Respondent at the said election. Not an iota of evidence was adduced to demolish the Appellant’s cling to the majority of the votes cast at the election.
The Appellant testified for himself on 9/8/11. His witness statement on Oath, sworn to on 17/8/11 was admitted as Exhibit K. Curiously, the questions put to him under cross-examination by respective counsel for the parties were, primarily, on his alleged emergence as a CPC candidate on 15/1/2011, the judgment of Court of Appeal in Exhibit B setting aside the judgment of Federal High Court i.e. Exhibit A1. Exhibit C is the declaration of result Form.
Nuhu Ajiyana Audu testified on behalf of the 2nd and 3rd Respondents herein. His Statement on Oath deposed to on 24/5/11 was received in evidence as Exhibit C.
In it’s judgment, the trial Tribunal expressed inter-alia thus:
“In Exhibit A”, the 1st Respondent was a party to the originating summons at the Federal High Court. The judgment of the Federal High Court in Exhibit A1 authorized and legally qualified him to contest the election as a candidate of CPC. His name is No. 17 on Exhibits A and A1. However, by the Court of Appeal judgment of 20th April, 2011, Exhibit A1 was overruled and set aside. The Court of Appeal held that the winners of the primary elections held on 15th January 2011 were not candidate of CPC to contest the elections because the primary was not sanctioned by the National Headquarters of the party. The 1st Respondents admitted being a party to Exhibits A, A1 and B. He is therefore a product of 15th January 2011 primary election organized by same CPC members without due authorization by the National Executive of CPC. By virtue of the provision of Section 287(2) of the 1999 Constitution (as Amended), the decision of the Court of Appeal must be enforced in any part of the Federation by all authorities and persons and by Court with subordinate jurisdiction to that of the Court of Appeal. This Tribunal is therefore bound to yield to the supremacy of the decision of the Court of Appeal. See Idris vs. ANPP (supra). This Tribunal has a constitutional duty to enforce the subsisting Judgment of the Court of Appeal or any Court for that matter. See Alhaji Ibrahim M. Saulawa vs. Kabir (supra). In Komolafe vs. Omole (supra) the Court held that a Court order is efficacious and binding until it is set aside by the Court which made the Order or a superior Court. This Tribunal cannot close its eyes to Exhibit B even if it is declaratory in nature, since it is a Judgment of a superior Court where no fight (sic) is vested on this Tribunal by the doctrine of binding precedent to decline compliance. See Osakwe vs. INEC (supra) and Idris vs. ANPP (supra). The result of Exhibit B is that the 1st Respondent was not sponsored by line political party (CPC). Exhibit B has a retrospective effect on Exhibit A1. The fact that an appeal is pending at the Supreme Court per Exhibit J (Notice of Appeal to the Supreme Court) is not a bar to the enforcement of Exhibit B having not been overruled. The judgment of the Court of Appeal cannot be put in abeyance because of Exhibit J as that will not serve the end of justice. See Ojo vs. INEC (supra).”
Being disgruntled with the pronouncement of the trial Tribunal, the Appellant lodged this appeal and prayed for setting aside of the said judgment and dismissal or striking out the 1st and 2nd Respondents’ claims and/or the Petition.
The 1st and 2nd Respondents were equally distraught with the consequential order made by the lower Tribunal, that they were propelled him to file a cross- appeal.
The parties complied with the Rules of procedure relating to appeals in election matters and then filed and exchanged their respective Brief of Argument. Three issues were submitted by the Appellant to this Court for the determination in the appeal.
They are:
“1. Whether the honourable Tribunal had the Jurisdiction to entertain and determine the petition before it.
- Was the alternative ground on which the Petition was premised valid and was the Honourable Tribunal right in considering same without first and foremost considering the main ground.
- Whether the Honourable Tribunal was right in enforcing the judgment of the Court of Appeal in appeal No. CA/A/133/2011, CPC and Ors. Vs. Senator Yakubu Garba Lado and another in favour of the Petitioners.”
In relation to Issue No. 1, learned Counsel for the Appellant, J, Abbas Ibrahim Esq. attracted the attention of this Court to the reliefs sought by the 1st and 2nd Respondents in their petition, the decision in Dingyadi vs INEC (2011) 10 NWLR Parts 1255 p. 347 at 395 paragraphs E-H, Exhibit A1, B, C, D, H and J, section 285 (1) (a) of the 1999 Constitution (as Amended), Ucha vs Onwe (2011) 1 M.J.S.C. part 11 p. 52 at 100 paragraphs F – G and Onejeme vs Azodo (2005) All FWLR part 275 p. 550. He pointedly argued that even though the alternative grounds relied upon by the Tribunal was supposedly on qualification or disqualification under section 65(2) of the 1999 Constitution (as Amended), the facts that sustained the same were basically, pre-election issues which the Federal High Court had adjudicated upon. The said decision was appealed against to the Court of Appeal from which it is equally pending on appeal before the Supreme Court. He explained that the Supreme Court had repeatedly asserted that where issue of qualification or disqualification is predicated on the domestic nomination exercise of a political party, it is clearly a pre-election issue, and, the Tribunal would have no jurisdiction to hear and determine the petition as it was not covered by section 285(1)(a) of the 1999 Constitution (as Amended). He commented that the Tribunal, rather than considering the ratio decidendi in the Supreme Court case of Ucha vs. Onwe (supra) to which it was referred, it positioned itself on the decision in Onejeme vs. Azodo, a Court of Appeal case. He stressed that the burden of proving disqualification under section 65(2) (a) of the 1999 Constitution (as Amended) was on the 1st and 2nd Respondents, as the Petitioners. They were not parties to the proceedings before the Federal High Court, Court of Appeal and the Supreme Court. He referred to Ogboru vs. Ibori (2004) ALL FWLR Part 225 p.173 at 192 paragraphs C-E, Okafor vs. INEC & Ors. vs. (2006) ALL FWLR Part 316 p.382 at 388, Zimit vs. Mahmoud (1993) 1 NWLR Part 267 page 71 at 89 paragraph H, per Akpabio, J.C.A., Alh. Ibrahim M. Saulawa vs. Badamasi Kabir & 4 Ors. (2011) 2 NWLR Part 1232 page 417 at 448 – 449 paragraphs D – F and H – A, Ukpo vs. Adede (2001) FWLR 850 at 886, and argued that since the 1st and 2nd Respondents were not parties to the intra party matters decided by the Court of Appeal and now pending before the Supreme Court, the Tribunal ought not to have felt bound to enforce the Court of Appeal judgment as the issue is sub judice and, have not been brought to finality by the supreme Court. He further stated that only an aggrieved member of a political party has the capacity or locus standi to challenge the validity or otherwise of a nomination of a member by that party. He further argued that it is only CPC, the party, that can straighten out the fact about the Appellant’s sponsorship. It was not the business of the 1st and 2nd Respondents. He cited Ukpo vs. Adede (supra) where it was opined that it did not lie in the mouth of the Appellant, a member of AD, a different political party to complain that the 1st Respondent who contested the election on the platform of PDP was not sponsored by PDP and therefore not duly elected and, that the Appellant be declared duly elected as he scored the majority of lawful votes. He then urged that issue No.1 be resolved in favour of the Appellant.
Dealing with issue No.2, Learned Counsel reproduced the provisions of section 138(1) of the Electoral Act, 2010 (as Amended) which stipulated the grounds upon which an election may be questioned, and, observed that there was a seeming attempt by the 1st and 2nd Respondents to rely on paragraphs (a) and (c) of sub-section (1) of section 138 of the said Act. He, however, stated that where a petitioner relies on paragraphs (c) of sub-section (1) of section 138 of the Electoral Act, he or she must give a proper tabulation of registered voters, total votes cast and the votes scored by each candidate. He cited the case of Amachree vs. Goodhead (2009) ALL FWLR Part 461 page 911 at 930 – 940 paragraphs H – A in support. He then argued even though the 1st and 2nd Respondents relied on section 138(1)(c) of the Act as their main ground, they did not, in the least, prove the same, nor did they tender the register of voters nor attempted to tabulate the total votes scored by each candidate.
He stated that the Tribunal in its consideration completely ignored the main claim and then zoomed in on the alternative ground that was not drafted in the exact words provided by section 138(1)(a) of the Electoral Act, 2010 (as Amended). Learned Counsel then made reference to Abimbola vs. Aderoju (1999) 5 NWLR part 601 p.100 at 108 paragraph H, Ayantola vs. Action Congress & Ors. (2009) All FWLR Part 475 page 1795 at 1812 paragraphs C – D, Ogboru vs. Ibori (2004) All FWLR part 225 p.173 at 199 paragraph C, Basheer vs. Same (1992) 4 NWLR Part 236 p.491, at 507 paragraphs D-E and submitted in drafting grounds of an election petition, the exact words used in the enabling law ought be adhered to. Further, Counsel referred to the cases of Okonkwo vs. INEC (2004) 1 NWLR Part 854 page 242 at 292 – 293, paragraphs G – D, Bounwe vs. Resident Electoral Commissioner, Delta State & Ors. (2006) 1 NWLR part 961 page 286 at 316, Dr. Olusegun Ajagu vs. Rahman Olusegun Mimiko (2009) 7 NWLR Part 1140 p.342 at 391 – 392, Ojukwu vs. Yar’adua (2009) 11 NWLR Part 1154 page 50 at 110 paragraphs B – E, 142 paragraphs B – E, per Muhammed, J.S.C., and submitted that failure of any ground of a Petition to conform with the statutory provisions of the Act is fatal to its competence ab initio, which makes it defective and liable to be struck out. He, also, urged that this issue be resolved in favour of the Appellant.
With regard to the third issue, Counsel emphasized that the said judgment of this Court, the Tribunal claimed to have enforced, was declaratory in nature, and that declaratory judgment cannot be executed or enforced. He cited in support, the book titled, “Book of Enforcement of Judgments” by Afe Babalola, OFR, SAN, page 9 paragraph 1, Okoya vs. Santili (1990) 2 NWLR Part 131 page 172 at 228, Order 19 Rules 5 and 6 of the Court of Appeal Rules, 2011, Complete Home Ent. vs. Henry Stephens Engineering Co. (1993) 9 NWLR Part 316 page 208 at 220 – 221. Paragraphs G – B, Alesinloye vs. Oyediran (2000) All FWLR Part 3 page 479 at 487 paragraphs C – E and Obot vs. Etim (2007) LRECN page 737.
He noted that the provisions of order 8 Rules 17 and 18 of the Supreme Court Rules which were considered by this court in complete Home Enterprise vs. Henry Stephens Engineering Co. (1993) 9 NWLR Part 316 page 208 at 220 – 221, paragraphs G – B, are in pari-materia with the provisions of order 19 Rules 5 and 6 of the Court of Appeal Rules, 2011. It was explicitly stated therein that when it comes to the enforcement of the Supreme Court judgment by the court below or by any other Court which had been seized of the matter, the Supreme Court must so direct. Having given the direction, a certificate under the seal of the Supreme Court and the hand of the presiding Justice setting forth the judgment shall be transmitted by the Registrar of the Supreme Court to the said court below, whereupon the said court below shall enforce the said judgment in terms of the certificate. Counsel, therefore, argued that the provisions for enforcement of the court of Appeal judgment was totally breached by the lower Tribunal, and as such, the purported enforcement is ineffectual, and should be set aside by this Court. In conclusion, he persuaded that this appeal be allowed.
In the argument clearly and carefully laid out on behalf of the 1st and 2nd Respondents/Cross-Appellants in their Respondents/Cross-Appellants Brief of Arguments, their learned counsel, Napoleon O. Idenala Esq; while adopting the three issues distilled by the Appellants/Cross-Respondents for consideration by this Court, categorically asserted that by the synergy of the provisions of sections 285(1) and 65(1) and (2) of the Constitution of the Federal Republic of Nigeria, 1999 (as Amended) and section 138(1) of the Electoral Act, 2010 (as Amended) and the case of S.P.D.C., the lower Tribunal had the jurisdiction to determine the reliefs sought before it, by the 1st and 2nd Respondents. He stated that since it is the Petitioners’ claims that determine the jurisdiction of the Tribunal, all the grounds of the Petition fall within the provisions of section 138(1)(a) and (b) of the Electoral Act. Relying on Aguomba vs. Uwais (2007) All FWLR Part 346 page 440 at 460 paragraphs C – D, and, Babatunde vs. P.A.S. & T.A. Ltd. (2007) All FWLR Part 372 page 1721 at 1759 paragraphs E.F., per Tobi, J.S.C., Counsel then commented that a case is decided on it’s own facts and the moment it is so decided, it should be cited in the light of those facts.
He argued that the pre-election issues involved in the election petition ‘now on appeal before us, had already been decided by the Abuja Division of this Court in the case of Congress For Progressive Change & others vs. Senator Yakubu Garba Lado & others (2011) 14 NWLR Part 1266 page 40 at 91 – 92 paragraphs G – G, and,97 paragraphs A.D. He recognized that this Court is the final Court of Appeal in election matters but, some how, argued that the decision of this Court in the pre-election matter was not made for fun nor was it intended to be in vain. He cited in support, the cases of Waziri vs. Ali (2009) 4 NWLR Part 1130 page 178 at 218 – 219 paragraphs A – D, Saulawa vs. Kabir (2011) 2 NWLR Part 1232 page 417 at 447 – 449 paragraphs G – D, Ojo vs. INEC (2008) 1 LRECN page 599 at 612 paragraphs A – C; Idris vs. A.N.P.P. (2008) 4 LRECN page 554 at 611 paragraphs E – F and ijagbemi vs. Ige (2011) All FWLR Part 560 page 1314 at 1330. He stressed that the 3rd, 4th and 5th Respondents were parties to that case in which this Court (Abuja Division) decided that the Appellant was not the candidate of the 5th Respondent (CPC) at the election. He contended that the said decision had clearly established the status of the Appellant as a person not sponsored by the 5th Respondent. He submitted that the trial Tribunal was right when it relied on the decision in Onejeme vs. Anazodo (2005) 2 LRECN page 513 – 514 paragraphs G – C; and Bayo vs. Njidda (2003) 3 LRECN page 144 at 154 – 155 paragraphs G – F to assume jurisdiction over the matter. He explained that the petition did not deal with pre-election issues but with the issues of qualification of the Appellant.
He stated that the Tribunal is duty bound to abide by, apply or enforce the decision reached by regular courts including the court of Appeal by virtue of section 287 sub-sections (2) and (3) of the 1999 Constitution of the Federal Republic of Nigeria. He pointed out that the arguments at pages 10 -16, paragraphs E.9 – E.23 of the Appellants Brief of Argument and the reliance placed on the cases of Ucha vs. Onwe (supra), Ogboru vs. Ibori (supra) and Okafor vs. INEC (supra) were misconceived, and, that paragraphs E.13 – E.15 were at variance with the decision in Waziri vs. Ali (2009) 4 NWLR Part 1130 page 178. Counsel contended that the judgment of the Abuja Division of this court is very relevant, and, where the judgment is relevant to the facts of the petition, it is the duty of the Petitioner and indeed all the parties to bring it’s existence to the knowledge of the court. He argued that the cases of Ojo vs. INEC (supra), Idris vs. A.N.P.P. (supra) and Ijagbemi vs. Ige (supra) did not negate nor invalidate the valid and subsisting judgment of this court in the said case. He, further, pointed out that the 5th Respondent abundantly stated that it did not sponsor the Appellant at the election and that the judgment of the court of Appeal was entered in it’s favour, the appeal to the Supreme Court was filed by the Appellant against it, therefore, the argument of the Appellants’ counsel is unfounded. He then urged that the issue be resolved in favour of the 1st and 2nd Respondents.
Learned counsel argued in respect of issue. No. 2 that the Appellant had not shown that he was aggrieved by the method adopted by the Tribunal in considering the reliefs sought by the 1st and 2nd Respondents. He said that the Appellant has not shown any miscarriage of justice he suffered as a result of that. Counsel submitted that it is not every error committed by a Court that would lead to reversal of the lower court’s judgment except it is manifestly shown that a miscarriage of justice had been meted out to him. He made reference’ to the cases .of Bellview Airline Ltd vs. Community City Ltd (2008) All FWLR Part 434 page at 1599 at 1611 paragraphs G – H, and, F.B.N. (Nig) Plc vs. Akporabong Community Bank (2006) All FWLR Part 319 page 927 at 965 E – D and A.N.P.P. vs. V. P.D.P (2006) LRECN page 298 at 324 paragraph D to straighten his argument. Learned counsel seemed to be arguing that if the Tribunal had first considered the first relief and the grounds upon which it was based before adverting it’s mind to relief No. 2, the outcome would have been more adverse to the Appellant. He suggested that by ignoring relief No. 1 and leaping straight to the 2nd relief, indicated nothing, but, a complete refusal of that relief by the Tribunal. He made some other arguments pertaining to who benefitted more from the Tribunal’s disregard of the first relief, which this court could not properly compartmentalize, and, urged that the second issue be answered in the negative.
On issue No. 3 concerning the weird enforcement by the Trial Tribunal of the said judgment of this court (Abuja) Division) in Appeal No. CA/A/133/2011, now pending on appeal before the Supreme Court, learned counsel contended that it will be naive to ask the trial Tribunal to ignore that decision or simply wish it away. He pivoted his argument on the decisions in some cases like Saulawa vs. Kabir (supra), Waziri vs. Ali (supra) he cited in support of issue No. 1, and, then urged that the issue be resolved in favour of the 1st and 2nd Respondents.
Submitting in respect of the 1st and 2nd Respondents, cross-Appeal, he contended that the finding of the Tribunal at page 324 of the record of appeal, shows that all the votes credited to the Appellant at the election were unlawful and wasted votes. Relying on the decision in Michael vs. Yusuo (2003) 2 LRECN page 281A, 310 paragraphs C – F and the provisions of sections 69 and 104(3) of the Electoral Act, 2010 (as Amended), Counsel emphasized that since the Appellant received the highest number of lawful votes at the election, she ought to be declared and returned as the winner of the election. He argued that the decision of the Tribunal at page 326 of the record nullifying the election was in sharp contrast with it’s earlier finding at page 324, second paragraph of the record, that the judgment of the Court of Appeal had a retrospective effect, meaning that the Appellant was disqualified before the election, since the judgment of this court (Abuja Division) took effect from the date of the decision of the Federal High Court, i.e 25th February, 2011.
Counsel, stressed that the interest of justice in the case requires that the 1st Cross-Appellant who scored the majority of lawful votes at the election, after discounting the void or wasted votes credited to the Appellant and his party be declared and returned as the winner of the ,election. Now, counsel is contending that, had the Tribunal exercised it’s discretion judicially and judiciously, it should have granted reliefs (i) and (ii) of the Petition, the reliefs he had earlier argued under issue No. 2, that it is not every error committed by a lower court would lead to it’s decision being set aside. He further placed reliance on the cases of H.A.S. (NIG) Ltd vs. Keazor (2011) 13 NWLR Part 1264 page 320 at 353-355 paragraphs F – B, Action Congress of Nigeria vs. National Assembly, (unreported) in Suit No. FHC/L/CS/471/2011 delivered on the 30th June, 2011, and, judgment in Kabiru Abdullahi & anor vs. Tukur Mohammed Besse & 2 others (unreported) delivered on 12/8/2011 by the National And State House of Assembly Election Tribunal For Kebbi State, and, strongly persuaded this court to allow the Cross-Appeal. It is necessary to observe, with due respect to learned counsel for the 5th Respondent that since the appeal is not being opposed by the 5th Respondent, the 5th Respondent ought not to have filed any Brief of Argument. As a result, the Brief filed by the 5th Respondent is hereby discarded.
Undoubtedly, the judgment of the trial Tribunal in the election petition before it, was squarely grounded on the hallowed decision of the Court of Appeal (Abuja Division) in the case of Congress For Progressive Change & others vs. Senator Yakubu Garba Lado & others (2011) 14 NWLR Part 1265 page 40. The said decision, as was asserted, had been appealed against to the Supreme Court, it is pending thereat, awaiting the final determination and decision of the Supreme Court on the pre-election issues between the Appellant and the 5th Respondent, and, to which the 1st and 2nd Respondents were not parties. It is discernible from all the arguments presented before this Court that the Supreme Court has not even heard the said appeal. Now, the all important point one needs to comprehend at this juncture is, ‘what it connotes to appeal against a decision’. A matter is said to have been appealed against when the Appellant has resorted to a higher court for the purpose of obtaining a review of a lower court’s decision and a reversal of the same or the granting of a new trial. Black’s Law Dictionary defined the word ‘appeal’ as “a proceeding undertaken to have a decision reconsidered by a higher authority”. Therefore, an appeal is said to be a continuation of the proceeding. Invariably, the decision of the Supreme Court constitutes the final judgment on the issue or issues involved in any case in respect of which an appeal had been lodged against from the court of Appeal. It follows, therefore, that until a matter pending on appeal is heard and determined, the final or real stance of the law on the issues involved would not have been finally ascertained and enthroned. A different consideration will definitely apply where the appeal terminated at the Court of Appeal and no appeal was filed therefrom. In the instant case, the pre-election matter between the Appellant and the 5th Respondent is still pending at the Supreme Court, the apex court of this country.
The first issue raised by the Appellant questioned the jurisdiction of the lower Tribunal to entertain and determine the petition before it. There is no doubt that section 138 of the Electoral Act, 2010 (as Amended) clearly earmarked the grounds upon which an election may be questioned, that is to say;
(a) that a person whose election is question was, at the time of the election, not qualified to contest the election;
(b) that the election was invalid by reason of corrupt practices or non compliance with the provisions of this Act;
(c) that the respondent was not duly elected by majority of lawful votes cast at the election; or
(d) that the petitioner or it’s candidate was validly nominated but was unlawfully excluded from the election.
Obviously, a quick glance at the reliefs sought by the 1st and 2nd Respondents would pretentiously fling them into the ambit of the aforestated provisions of the Electoral Act (as Amended). However, confusion ensues when one tries to consider the facts upon which the reliefs were based, the evidence led before the trial Tribunal and the pivot of the Tribunal’s decision. From the facts averred, it seems clear that the basis for questioning that the Appellant was not duly elected by majority of lawful votes cast at the election was the assumption that all the votes purportedly scored by the Appellant at the election were null and void as he was not a rightful or validly nominated candidate at the election. This assumption manifested itself in the reliance placed on the decision of this Court in the case of Congress For Progressive Change & others vs. Senator Yakubu Garba Lado & others (supra) by the 1st and 2nd Respondents in the evidence they adduced, and, the trial Tribunal, to authentically establish that the Appellant was not a rightful or validly nominated candidate at the election.
It is clear as crystal that the ground of the Appellant not being duly elected by majority of lawful votes cast at the election was not distinctively considered by the trial Tribunal. The trial Tribunal, from every indication, totally abandoned the reliefs sought by the 1st and 2nd Respondents, and, uninvitedly, dabble in determination of the facts averred supporting the grounds for the reliefs, that is to say; that the Appellant was not a rightful or validly nominated candidate of the 5th Respondent. This is clearly demonstrated at page 323 of the record of appeal, when after summation of the .submissions of the respective Counsel for the parties, the trial Tribunal then posed the question; “Is the 1st Respondent sponsored by his political party to qualify him under section 65(2)(b) of the constitution to contest the election held on 9th April, 2011? In it’s resolution of the question, it stated thus: “the totality of what we are saying is that the 1st Respondent, Muhammed Tukur was not sponsored by his political party-CPC. He is therefore not qualified under section 65(2)(b) of the Constitution and section 138(1)(a) of the Electoral Act (2010) and we so hold”
There is no doubt that the issue of qualification or disqualification of a candidate for election to the House of Representatives is one of the grounds upon which an election can be questioned by the provisions of section 65 of the 1999 Constitution of Republic of Nigeria (as Amended) which were subjected to the provisions of section 66 of the said Constitution. By section 65(2)(b), a person shall be qualified for election to the House of Representatives; if he is a member of a political party and is sponsored by that party. However, section 66 of the 1999 Constitution (as Amended) to which section 65 is subject, clearly detailed the circumstances under which a person shall not be qualified for election to the Senate or House of Representatives. It must be highlighted that by subjecting the provisions of section 65 to those of section 66 of the said Constitution, the provisions of section 66 shall have dominion over the provisions of section 65, which are dependent upon them. What it implies is that proper interpretation of section 65 shall emerge only after the provisions of section 66 shall have been, in great depth, scrutinized.
Although, the issue of being a member of a political party and being sponsored by that political party was mentioned in section 65(2)(b) of the 1999 Constitution (as Amended). However, section 66 under which ,power or sovereignty section 65 is, or to which it is subordinate, clearly defined factors that may water the grounds under which a person’s election to the House of Representatives may be questioned as clearly envisaged by section 138 of the Electoral Act, 2010 (as Amended). This was validated by the Supreme Court in Ucha vs. Onwe (supra) cited by the Appellant’s Counsel.
Section 66(1) of the 1999 Constitution (as Amended) provides thus:
“No person shall be disqualified for election to the Senate or the House of Representatives if…
(a) Subject to the provisions of section 28 of this Constitution, he has voluntarily acquired the Citizenship of a country other than Nigeria or, except in such cases as may be prescribed by the National Assembly, has made a declaration of allegiance to such country;
(b) Under any law in force in any part of Nigeria, he is adjudged to be a lunatic or otherwise declared to be of unsound mind;
(c) He is under a sentence of death imposed on him by any competent court of law or tribunal in Nigeria or a sentence of imprisonment or fine for an offence involving dishonesty or fraud (by whatever name called)or any other offence imposed on him by such a court or tribunal or substituted by a competent authority for any other sentence imposed on him by such a court;
(d) Within a period of less than ten years before the date of an election to legislative house, he has been convicted and sentenced for an offence involving dishonesty or he has been found guilty of a contravention of the Code of Conduct;
(e) He is an undischarged bankrupt, having been adjudged or otherwise declared bankrupt under any law in force in any part of Nigeria;
(f) He is a person employed in the public service of the Federation or of any State and has not resigned, withdrawn or retired from such employment thirty days before the date of election;
(g) He is a member of any secret society;
(h) He has been indicted for embezzlement or fraud by a Judicial Commission of Inquiry or an Administrative Panel of Inquiry or a Tribunal set up under the Tribunals of Inquiry Act, a Tribunals of Inquiry Law; or any other law by the Federal or State Government which indictment has been accepted by the Federal or State Government, respectively; or
(i) He has presented a forged certificate to the Independent National Electoral Commission.
Since section 66 of the 1999 constitution (as Amended) supersedes and controls the provisions of section of 65(2)(b), a subordinate section, if there is any inconsistency, it follows, therefore, that the election of the Appellant herein may, also, be questioned as envisaged by section 138(1) of the Electoral Act, 2010 (as Amended) on the existence of any of the conditions enumerated in section 66 and not under 65(2)(b) where there is inconsistency.
It had been, severally, recapitulated by the Supreme Court that issue of sponsorship of a candidate at an election is purely a pre-election matter that Election Tribunals have no iota of jurisdiction over. Even in Ucha vs. Onwe (supra), the Supreme Court treated as untenable the argument of Counsel for the 1st Respondent therein that the Appellant therein not being the person that was nominated for Ebonyi Central Senatorial District in the, nomination exercise of the 4th Respondent was not qualified to contest the election. lt was distinctly stated therein that a person’s disqualification or non-qualification based on or arising from the domestic nomination exercise of his political party is clearly a pre-election matter over which the Election Tribunal has no jurisdiction.
The facts x-rayed by the 1st and 2nd Respondents as supporting their Petition challenging the election of the Appellant, as I earlier observed, did not tally with any of the circumstances described in section 66(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as Amended). The 1st and 2nd Respondents were precise as to the facts they relied upon for their allegation of non-qualification of the Appellant, i.e. that the Appellant was not a rightful or validly nominated candidate at the election. Needless over-flogging this ritualised expressions of the law on questions bordering on the nomination and sponsorship of a candidate of a party at an election. Our Law Lords had so much concretized and solidified this position of the law that whenever one comes across fresh issues touching on nomination and sponsorship of candidates presented before the election tribunals for adjudication and upon which they assumed jurisdiction, one then starts wondering the possible reasons why the minds of some of the custodians and ministers of the law at the tribunal level were often beclouded as not to have appreciated the position of the Supreme Court on the same. It’s horrendously ridiculous the extent they had always gone to differentiate the cases considered by them from such similar cases already decided by the Supreme Court, and, introducing some other clogs and enabling grounds that would justify their departure from the hallowed decision. Nevertheless, it is well settled that any ground in an election petition questioning the qualification or non-qualification of a candidate at an election on the fact that such candidate was not nominated and sponsored by his political party, does not fall within the jurisdiction of election tribunals to adjudicate upon. See Ucha vs Onwe (2011) 4 NWLR Part (237) p. 386 where the previous decisions of the Supreme Court in the cases of Amaechi vs INEC (2008) 5 NWLR Part 1080 p.227 at 314, Odedo vs. INEC (2008) 17 NWLR Part 1117 page 554, at 602, Agbakoba vs. INEC (2008) 18 NWLR Part 1119 page 489 at 544 were considered. It is, therefore, crystal clear that the National and House of Assembly Election Tribunal has no jurisdiction whatsoever to entertain, deal with or pronounce on any pre-election matter or issue such as the one in the instant appeal. Accordingly, issue No. 1 in this appeal is hereby resolved in favour of the Appellant. I must admit that this issue alone, has conveniently disposed of this appeal, but, that notwithstanding, I will proceed with consideration of the rest issues.
Relating to the second issue pertaining to the alternative ground sought for by the 1st and 2nd Respondents in their Election Petition and, to which the trial Tribunal first leapt, it is imperative to reiterate the long aged principle of the law on consideration of alternative reliefs or claims by trial Courts. A claim in the alternative sets forth multiple claims alternatively, such that, if one of the claims is held invalid or failed, the other claims should still be considered. So, it gives the party claiming, a choice limited to one of two or more of the claims. In alternative claims, the first of the two or three of them shall first be considered. It is only after the first or principal relief had been considered and it seemed impossible to be granted or refused that the Court would proceed to consider the claim in the alternative. See Standard Trust Bank vs. Ezenwa Anumnu (2008) 14 NWLR Part 1106 page 125. Besides, the 1st and 2nd Respondents’ claim in the alternative grounded on the facts of nomination and sponsorship and the decision of the Abuja Division of this Court on the pre-election issues between the Appellant and the 5th Respondent, plunged into by the trial Tribunal, had already been adjudged as not being within the jurisdictional powers of the trial Tribunal, and was, therefore, incompetent. Issue No. 2 is hereby answered in the negative.
It is vital to note that the said judgment of this Court the trial Tribunal professed to be enforcing is still pending on appeal before the Supreme Court, as the final Court in Nigeria, to pronounce upon. By the appeal pending thereat, it means that there is not yet, a final pronouncement on the issue whether the Appellant was the rightful nominated and sponsored candidate of the 5th Respondent at the election to the office of member, House of Representatives for the Katsina central Federal Constituency held on the 9th April, 2011, that was ripe for enforcement by the trial Tribunal at the time it embroiled itself in the pre-election issues of the 5th Respondent. It is the law that, it is only when a party has not appealed against a judgment given against him in a suit, that he is bound to have that judgment enforced against him and through the process entrenched by the law. In the case of A.G., Anambra State vs. A.G. Federation (2005) 9 NWLR Part 931 page 572, at page 615, the Supreme Court clearly expressed that where the judgment of a lower Court is not appealed against, it subsists and remains valid. See, also, the case of Fortune International Bank Plc. vs. Pegasus Trading Office (2004) 4 NWLR Part 863 page 369. The emphasis in those two Supreme Court cases were on ‘judgments not appealed against’. Therefore, the said decision of this court on the pre-election issues between the Appellant and the 5th Respondent, having been appealed against; and, having not yet been pronounced upon, was inappropriately enforced. Issue No. 3 is, therefore, resolved in favour of the Appellant.
Consequently, for all the reasons I have analysed above, I find this appeal meritorious and it ought to be allowed. The judgment of the National and State House of Assembly Election Tribunal, sitting at Katsina State delivered on the 28th September, 2011 in KT/EPT/HR/14/2011 is hereby set aside. Further, the Election Petition filed by the 1st and 2nd Respondents at the said Tribunal on the 29th April, 2011 is hereby dismissed. There will be no order as to costs.
Regarding the Cross-Appeal seeking to set aside the order of the Election Tribunal for fresh election to be conducted in the Katsina Central Federal Constituency, that, with no apology would fail, since the main appeal has been allowed by this Court. Since the issue of who was the rightful nominated candidate of the 5th Respondent is yet to be determined by the Supreme Court, and, there being no finding was made by the trial Tribunal on the first relief sought by the 1st and 2nd Respondents in their Petition, it would be foolhardy considering the issue raised in the Cross-Appeal. Accordingly, this Cross-Appeal is hereby struck out.
AMINA A. AUGIE, J.C.A.: I agree.
ABDU ABOKI, J.C.A.: I agree.
